LAW  LIBRARY 
Duke  University 

DURHAM,  N.  C. 


APPROPRIATION 


L00384089W 


t 


\ 


t 


The 

Eighteenth  Amendment 

—Its  Validity 
—Public  Opinion 


PROF.  E.  A.  HARPER 


Dickinson  School  of  Law,  Carlisle,  Pennsylvania 


THIS  MOST  REMARKABLE  ARGUMENT  IN  DEFENSE  OF  THE  EIGHTEENTH 
AMENDMENT  IN  ANSWER  TO  THE  ATTACKS  OF  DR.  NICHOLAS 
MURRAY  BUTLER,  PRESIDENT  OF  COLUMBIA  UNIVERSITY,  IS 
A  REPRINT  OF  AN  ARTICLE  BY  PROF.  E.  A.  HARPER, 

OF  THE  DICKINSON  SCHOOL  OF  LAW,  CARLISLE 
PA.,  APPEARING  IN  THE  DICKINSON  LAW 
REVIEW  FOR  MAY,  1928 


THE  AMERICAN  ISSUE  PUBLISHING  COMPANY.  WESTERVILLE  OHIO 


Digitized  by  the  Internet  Archive 
in  2018  with  funding  from 
Duke  University  Libraries 


https://archive.org/details/eighteenthamendm01harp 


The  Eighteenth  Amendment 

—Its  Validity  —Public  Opinion 

Professor  E.  A.  Harper, 

Dickinson  School  of  Lazv,  Carlisle,  Pa. 

In  Symphony  Hall,  Boston,  April  8th,  19 27, 1  Dr.  Nicholas 
Murray  Butler,  President  of  Columbia  University,  made  use  of 
this  language : 

“On  a  dark  March  afternoon  in  1920  1  sat  in  the  Supreme 
Court  of  the  United  States,  in  the  room  whose  walls  had  echoed 
with  the  voices  of  Clay  and  of  Calhoun,  of  Webster  and  of  Benton 
and  the  men  of  long  ago,  and  I  listened  to  the  conclusion  of  a  great 
argument. 

“The  case  at  bar  involved  the  validity  of  the  so  called  Eight¬ 
eenth  Amendment  to  the  Constitution  of  the  United  States.  Was 
that  proposed  amendment  a  valid  exercise  of  the  power  conferred 
by  the  fifth  article  of  the  Constitution? 

“In  front  of  an  attentive  court  stood  the  tall,  slim  figure  of  an 
acknowledged  leader  of  the  American  bar,  one  of  the  most  distin¬ 
guished  public  servants  of  his  generation,  who  was  presenting  the 
argument  against  the  validity  of  the  amendment.  He  looked  at 
the  clock,  behind  the  chief  justice  and  saw  that  it  was  within  two 
or  three  minutes  of  the  hour  when  the  court  would  rise,  and  he 
concluded  with  these  exact  words : 

“  ‘If  your  honors  shall  find  a  way  to  uphold  the  validity  of  this 
amendment,  the  government  of  the  United  States  as  we  have 
known  it  will  have  ceased  to  exist.  Your  honors  will  have  found 
a  legislative  authority  hitherto  unknown  to  the  Constitution,  and 
untrammeled  by  any  of  its  limitations.  Your  honors  will  have 
decided  that  two-thirds  of  a  quorom  of  each  house  of  the  Con¬ 
gress,  with  the  support  of  a  majority  of  a  quorom  of  the  Legis¬ 
latures  of  36  states,  may  enact  any  law  relating  to  the  life,  the 
liberty,  or  the  property  of  its  citizens,  to  the  form  and  fabric  of 
the  government,  or  to  the  bill  of  rights  itself  without  recourse  and 

[3] 


without  appeal.  In  that  case,  your  honors,  John  Marshall  need 
never  have  sat  upon  your  bench.’ 

“It  was  a  tense  moment  when  Elihu  Root  closed.  The  argu¬ 
ment  was  ended  and  the  court  rose. 

“Mr.  Chairman,  I  made  a  silent  vow,  there  and  then,  that,  if 
the  court  should  find  a  way  to  uphold  that  amendment,  despite  that 
argument,  I  would  give  such  strength  and  such  time  as  were  at  my 
command  to  appeal  to  the  American  people  to  undo  that  wrecking 
of  our  government. 

“The  Eighteenth  Amendment  is  the  law,  and  as  such  we  owe  it 
obedience,  but  we  owe  to  the  underlying  principles  of  America  an 
appeal  to  the  people  whose  Constitution,  whose  judiciary,  and 
whose  Legislatures,  they  are — an  appeal  to  undo  that  damage  and 
to  correct  that  stupendous  error. 

“My  appeal  is  from  the  judicial  and  legislative  branches  of  the 
people’s  government  to  the  people  themselves  to  take  out  of  that 
Constitution  a  provision  in  the  form  of  an  amendment  which  is 
not  an  amendment,  which  is  substantive  legislation,  which  is  a 
revolutionary  act,  which  has  no  likeness  to  anything  that  is  in  the 
Constitution,  which  has  nothing  to  do  with  the  form  and  structure 
of  the  government  or  with  the  limitation  of  powers  granted  therein, 
but  which  is  an  ordinary  municipal  law,  operating  directly  and 
almost  irrevocably  upon  the  whole  body  of  our  citizenship.” 

It  is  not  the  purpose  in  this  paper  to  discuss  the  value  or  the 
merits  of  the  Eighteenth  Amendment,  but  the  validity  and  its  rela¬ 
tion  to  public  opinion  in  its  adoption  and  ratification.  And  as  Dr. 
Butler’s  opening  statements  are  an  epitome  of  Mr.  Root’s  argu¬ 
ment  to  the  Supreme  Court  with  a  few  additions,  the  discussion 
will  be  confined  to  the  propositions  contained  in  those  statements 
resolved  in  the  following : 

1.  The  amendment  is  revolutionary. 

2.  It  is  substantive  legislation. 

3.  It  is  an  addition  to,  and  not  an  amendment  of,  the  Con¬ 
stitution. 

4.  It  is  ordinary  municipal  legislation. 

5.  It  has  no  likeness  to  anything  in  the  Constitution. 

6.  It  was  secured  by  a  two-thirds  majority  of  a  quorom  of 
Congress  and  ratified  by  a  majority  of  a  quorum  of  three-fourths 
of  the  legislatures,  instead  of  two-thirds  of  all  the  members  of 

[4] 


Congress  and  a  majority  of  all  the  members  of  the  legislatures  of 
three-fourths  of  the  states. 

It  will  be  conceded  that  all  the  above  propositions  are  true 
except  the  Fifth  and  if  they  cannot  be  justified  by  the  history, 
custom,  rules  and  regulations  of  the  Congress  and  the  various 
legislatures  and  Article  V  of  the  Constitution,  then  Mr.  Root’s 
reasoning  is  sound  and  the  Eighteenth  Amendment  is  invalid  and 
the  Court  should  have  so  declared. 

First — The  amendment  is  revolutionary.  Is  there  anything 
strange  and  unusual  about  that?  These  United  States  were  born 
in  a  revolution,  traced  through  fire  and  blood  and  smoke  to  a 
splendid  consummation.  There  seems  to  be  no  objection  to  that, 
on  the  contrary  everybody  glories  in  it  even  though  written  in 
blood.  But  in  less  than  ten  years  from  that  consummated  revolu¬ 
tion  there  was  another  one,  this  time  accomplished  in  peace.  In 
the  winter  of  1786  and  1787,  the  Congress  of  the  United  States 
authorized  a  convention  to  convene  in  Philadelphia.  The  dele¬ 
gates  were  commissioned  to  meet  and  propose  amendments  to  the 
Articles  of  Confederation — reconstruct  the  old  existing  Govern¬ 
ment.  Did  they  do  it  ?  Did  these  delegates  obey  their  mandate 
received  from  the  people? 

Those  fifty-five  men  ranging  in  age  from  27,  the  youngest, 
to  81,  the  oldest,  went  into  that  building  on  Chestnut  Street,  Phila¬ 
delphia,  turned  to  the  first  room  on  the  left,  on  the  first  floor, 
closed  the  door,  locked  it,  appointed  a  sergeant  at  arms  to  keep  it 
locked,  and  four  long  months  they  were  holding  sessions  as  secret 
as  a  Masonic  Lodge.  They  did  not  take  the  people  into  their  con¬ 
fidence.  And  the  people  were  wondering,  surmising,  speculating, 
and  even  rumoring  that  those  men  were  proposing  a  monarchy, 
and  expected  to  invite  the  youngest  son  of  George  III,  who  was  a 
Bishop  somewhere,  to  be  King  of  America.  And  while  the 
rumoring  was  going  on  outside,  the  “fifty-five”  inside  were  formu¬ 
lating,  launching  and  finally  prosecuted  to  successful  culmination 
the  most  profound,  fundamental,  and  humanitarian  revolution 
ever  recorded  in  the  world’s  history.  They  deliberately  proposed 
“scrapping”  the  old  government  and  setting  up  an  entirely  new 
one.  To  use  Dr.  Butler’s  language,  they  proposed  “wrecking”  the 
then  existing  government. 

On  September  17,  of  that  eventful  year,  those  delegates,  after 

[5] 


violating  their  mandates,  adjourned,  having  instructed  their  pre¬ 
siding  officer,  George  Washington,  to  destroy  all  records  of  the 
proceedings,  send  the  document  they  had  framed  with  a  letter  of 
advice,  to  the  Congress  in  New  York,  virtually  requesting  that 
government  to  go  and  commit  suicide.  And  strange  to  say,  that 
government  meekly,  yet  reluctantly,  proceeded  to  do  it.  Revolu¬ 
tion  !  There  was  one  that  was  so  far  reaching  as  to  astonish  the 
civilized  world,  and  brought  about  peacefully  quite  an  improve¬ 
ment  over  the  one  a  few  years  before.  The  only  speech  Wash¬ 
ington  made  during  those  four  summer  months  was  when  he  said, 
“if  the  states  will  not  accept  this  new  government,  the  next  one 
will  be  drawn  in  blood.” 

Mr.  Root  and  Dr.  Butler  don’t  seem  to  have  any  objection  to 
a  revolutionary  document  consisting  of  more  than  four  thousand 
words,  brought  about  by  faith  breakers,  and  trust  violators,  but, 
hold  up  their  hands  in  holy  horror  when  a  little  revolutionary 
document,  consisting  of  44  words,  amending  the  older,  larger  one, 
is  brought  about,  and  no  faith  breaking,  nor  trust  violating  in 
doing  it.  Neither  was  it  brought  about  in  secret.  It  was  done 
openly,  both  by  Congress  and  the  46  legislatures.  That  much  at 
least  can  be  said  for  this  second,  peaceful  revolution.  If  this  last 
one  is  invalid  because  revolutionary,  how  much  more  so  is  the 
Constitution  itself  invalid  because  revolutionary. 

Second  and  Fourth — It  is  substantive  legislation.  It  is  ordi¬ 
nary  municipal  legislation. 

These  two  may  be  taken  together  meaning  substantially  the 
same  thing.  Substantive  and  municipal  legislation  operate  upon 
the  individual  citizens  as  such.  It  has  not  to  do  with  the  form 
and  manner  or  modes  of  government.  It  is  contended  that  be¬ 
cause  the  Eighteenth  Amendment  is  substantive  municipal  legis¬ 
lation  and  not  constitution  making,  therefore,  it  is  invalid  as  a 
constitutional  measure. 

Is  there  anything  in  the  Constitution  itself  that  operates  on 
the  citizens  directly  or  any  class  of  citizens,  that  partakes  of  the 
nature  of  municipal  and  substantive  legislation? 

Article  I,  Sec.  9,  reads  thus:  “And  no  person  holding  any 
office  of  profit  or  trust  under  them  (United  States)  shall,  without 
the  consent  of  Congress,  accept  of  any  present,  emolument,  office, 
or  title  of  any  kind  whatever  from  any  king,  prince,  or  foreign 

[6] 


state.”  Here  is  a  class  of  citizens  numbering  hundreds  of  thou¬ 
sands  that  this  proviso  operates  upon  directly.  It  is  just  as  much 
ordinary  municipal  legislation  as  the  Eighteenth  Amendment. 

But  it  may  be  objected  that  this  is  not  a  fair  example,  as  those 
persons  are  connected  with  the  government,  and  therefore  are  a 
part  of  the  structure  of  the  government.  Very  well,  that  objec¬ 
tion  may  stand  and  the  point  yielded.  Article  XIII  of  the  amend¬ 
ments  provides  “Neither  slavery  nor  involuntary  servitude,  except 
as  a  punishment  for  crime  whereof  the  party  shall  have  been  duly 
convicted,  shall  exist  within  the  United  States,  or  any  place  subject 
to  their  jurisdiction.”  There  is  a  proviso  free  from  limitations 
operating  in  the  form  of  a  prohibition  upon  the  citizens  of  the 
United  States — all  of  them  and  not  any  class.  There  is  an  ex¬ 
ample  of  the  purest  substantive  municipal  legislation  as  can  be 
found.  No  act  ever  passed  by  Congress  or  legislature  is  more  so. 
That  amendment  changed  no  part  of  the  form  of  government. 
It  pertained  to  no  mode  or  manner  of  governmental  functioning. 
Congress  never  owned  slaves.  No  Southern  state  ever  owned 
slaves.  It  is  doubtful  if  ever  a  county,  township,  city  or  town 
ever  owned  a  slave.  It  was  individual  slave  holders  that  were 
affected,  and  them  only.  Mr.  Root  did  not  object  to  this  prece¬ 
dent.  Had  he  been  in  the  New  York  legislature  there  is  not  much 
doubt  but  that  he  would  have  voted  to  ratify  this  Thirteenth 
Amendment. 

If  the  Eighteenth  Amendment  is  invalid  because  of  its  being 
ordinary,  substantive,  municipal  legislation,  then  the  Thirteenth 
Amendment  is  invalid  for  the  same  reason. 

Again,  is  this  Thirteenth  or  Eighteenth  Amendment  the  first 
and  only  instances  where  constitution  making  resulted  in  ordinary, 
municipal  legislation?  The  individual  states  of  the  Union  had 
made  constitutions  both  before  and  after  the  Federal  Constitution 
was  framed.  All  of  them  have  numerous  commands  and  prohi¬ 
bitions  operating  directly  upon  the  citizens  of  those  respective 
states.  And  every  command  or  prohibition  is  a  law,  substantive, 
municipal.  You  can  not  have  a  law  without  a  law  maker.  Where 
is  the  advantage  in  drawing  the  fine  distinction  between  words  and 
phrases  such  as  “constitution  maker”  and  “law  maker.”  Both 
result  in  law.  It  avails  nothing  to  say  that,  if  the  result  of  the 
supposed  Constitution  making  is  municipal  law,  it  is  invalid  and 

[7] 


therefore  is  no  law.  The  only  substantial  question  is,  who  made 
the  law  whether  municipal  in  nature  and  form  or  otherwise?  If 
the  people  in  their  sovereign  capacity  made  the  law,  it  is  a  consti¬ 
tution,  fundamental,  basic,  supreme.  If  the  delegated  legislature 
makes  the  law  it  is  a  statute,  and  the  legislature  being  merely  an 
agent  of  the  people  must  carry  out  the  authority,  expressed  or  im¬ 
plied,  committed  to  it. 

The  previous  people-made  law,  even  though  part  of  it  is 
municipal  in  nature  and  form,  resulting  in  a  constitution,  is  the 
charter  from  which  the  agent,  the  legislature,  gets  its  authority. 
If  the  agent  exceeds  that  authority  derived  from  the  charter,  its 
act  is  a  nulity  and  void,  unless  ratified  by  the  principal.  If  the 
principal  enacts  a  law,  it  is  answerable  to  no  power  within  the 
state.  The  agent  may  do  less  than  the  principal  and  may  do  as 
much,  if  authorized ;  it  may  not  do  more.  But  who  will  contend 
that  the  principal  may  not  do  more  than  the  agent?  If  the  prin¬ 
cipal  has  authorized  or  delegated  the  agent  to  pass  municipal  law, 
it  inherently  reserves  the  power  to  repeal  that  law,  or  pass  one  if 
the  agent  fails  to  enact  one.  These  principles  are  axiomatic  and 
need  no  proof. 

Now,  applying  this  doctrine  thus  enunciated  to  the  people  of 
the  nation  as  the  principal  and  the  Congress  as  the  agent  of  the 
principal,  the  people,  it  has  equal  force,  and  equally  adaptable  and 
fitting.  It  is  even  more  extensive  in  its  operation  than  when  ap¬ 
plied  to  state  powers.  The  national  power,  principal  or  agent, 
acting  within  its  proper  sphere,  extends  downward  over  the  state. 
The  state  power,  principal  or  agent,  does  not  extend  upward  over 
the  nation.  The  national  power,  the  principal,  has  decreed  that 
“this  Constitution,  and  the  laws  of  the  United  States  which  shall 
be  made  in  pursuance  thereof,  and  all  treaties  made,  or  which  shall 
be  made,  under  the  authority  of  the  United  States,  shall  be  the 
supreme  law  of  the  land ;  and  the  judges  in  every  state  shall  be 
bound  thereby,  anything  in  the  Constitution  or  laws  of  any  state 
to  the  contrary  notwithstanding.” 

The  supreme  power  of  the  land,  the  people,  has  decreed  and 
placed  in  the  Great  Charter,  the  Constitution,  the  manner  in  which 
it  shall  be  amended.  That  Supreme  power  has  been  liberal  and 
provided  two  ways  for  bringing  about  amendments  to  the  Great 
Charter. 


[8] 


Eleven  times,  the  power  to  amend  has  been  exercised,  and 
of  the  two  methods  provided,  the  same  has  been  used  every  time. 
Why  single  out  the  Eighteenth  Amendment  and  question  its 
validity,  when  it  was  passed  in  the  exact  manner  and  with  the 
same  exact  carefulness  as  all  the  other  eighteen  were  passed  ? 

Third— It  is  an  addition  to,  and  not  an  amendment  of,  the 
Constitution. 

In  perusing  the  first  ten  amendments,  we  find  all  of  them  to 
be  entirely  new.  They  do  not  amend  anything  already  in  the  Con¬ 
stitution.  They  change  nothing  already  provided.  They  are  mere 
additional  protections  to  the  individual  citizens.  Indeed  that  is 
why  they  were  desired  and  proposed.  It  was  contended  that  the 
states  and  the  Federal  government  had  their  protection  and  the 
individuals  had  none.  If  this  contention  be  true,  then  when  they 
are  provided,  why  are  they  not  additions  and  not  “changes  or 
amendments  ?”  Others  contended  that  the  original  document  did 
provide  protections,  but  to  clear  up  any  doubt  the  ten  additions 
were  sufifered  to  go  in,  and  they  were  so  intended.  The  seventh 
might  possibly  be  construed  as  an  exception  and  be  conceded  to  be 
an  amendment.  The  ninth  and  tenth  are  merely  declaratory  of 
what  might  be  found  in  the  Constitution  by  fair  inference. 

In  1847,  James  Buchanan,  as  Secretary  of  State  of  Polk’s 
Cabinet,  formally  proclaimed  over  his  official  signature,  after 
enumerating  all  the  amendments,  that  they  were  the  "additions  to, 
and  amendments  of,  the  Constitution  of  the  United  States.” 

But  what  fair  thinking  person  can  object  to  something  being 
added  to  the  original  fundamental  law  of  the  land,  if  the  people  in 
their  sovereign  capacity  as  law  maker  think  it  necessary  to  be 
added?  This  is  a  progressive,  expanding,  complex  age  we  are 
living  in.  If  the  exigencies  of  the  times  demand  something  by 
addition,  the  people  will  do  it,  and  there  is  no  power  higher  that 
can  prevent  them  from  so  doing.  And  by  fair  inference  the 
framers  of  the  Constitution  intended  this  to  be  so,  when  they  pro¬ 
vided  a  way.  It  is  a  great  strain  on  one’s  imagination  to  suppose 
that  those  far-seeing  men  intended  the  people  to  be  put  in  a  straight 
jacket  and  not  be  able  to  provide  for  a  possible  contingency  in  the 
vast  future  in  which  they  expected  the  Constitution  to  endure. 

In  all  deliberative  bodies,  motions  are  amended  by  addition, 
subtraction  or  substitution.  Suppose  the  Congress  should  pro- 

[9] 


pose  to  change  the  Eighteenth  Amendment  by  an  amendment.  In 
doing  so,  it  is  proposed  to  substitute  legalizing  the  traffic  in  intoxi¬ 
cating  liquors  in  place  of  prohibiting  the  traffic  in  all  the  territories 
of  the  United  States ;  and  this,  were  it  adopted  by  two-thirds  of 
both  houses  and  ratified  by  three-fourths  of  the  State  legislatures, 
would  any  one,  or  could  any  one,  rightfully  contend  that  this 
would  not  be  a  legal  and  correct  procedure?  It  certainly  could 
not.  And  yet  it  would  be  an  addition  to  the  Constitution,  and 
something  new  and  different.  The  Eighteenth  Amendment  would 
then  be  a  legalization  instead  of  a  prohibition. 

Who  will  deny  the  right  of  the  people  of  the  United  States 
to  amend  the  Constitution  prohibiting  great,  ponderous  air¬ 
planes  and  ships,  carrying  hundreds  of  passengers  and  many  tons 
of  freight,  from  passing  over  densely  populated  sections  of  the 
country?  Who  will  deny  the  right  of  the  people  of  authorizing 
the  construction  of  a  terminus  of  an  eight  or  ten-way  tube  for 
trains  and  autos  connecting  Europe  and  America,  or  even  prohibit¬ 
ing  such  construction  ?  These  certainly  would  be  something  new 
and  vastly  different  from  anything  that  is  in  the  original  Consti¬ 
tution  and  something  the  framers  never  dreamed  of.  Can  any  one 
suppose  that  those  framers  ever  intended  that  the  people  should  be 
hampered  in  their  means  of  self  protection,  or  of  self  advance¬ 
ment?  Most  assuredly  we  can  not  think  so. 

Should  the  Congress  enact  a  law  under  the  police  power  pro¬ 
hibiting  such  acts,  then  some  high-priced  lawyer  would  be  arguing 
before  the  Supreme  Court  that  such  an  act  of  Congress  would  be 
contravening  the  Fourteenth  Amendment  of  the  Constitution  deny¬ 
ing  the  equal  protection  of  the  laws,  the  due  process  of  law,  or  the 
equal  privileges  and  immunities  of  the  law.  If  Congress  should 
refuse  to  act.  the  people  could  go  over  the  head  of  Congress  and 
amend.  If  Congress  should  enact,  then  the  people  could  annul. 

Fifth — There  is  nothing  like  it  in  the  Constitution.  This  we 
deny.  The  Thirteenth  Amendment  is  something  like  the  Eight¬ 
eenth.  But  this  objection  is  largely  answered  in  number  three. 
The  Thirteenth  Amendment  is  prohibitive  in  its  nature,  operating 
on  the  individual.  The  Eighteenth  is  prohibitive  in  nature,  oper¬ 
ating  on  the  individual. 

The  subject  of  slavery  was  a  very  delicate  subject  for  the 
Convention  of  1787  to  act  upon.  What  was  done  about  it  was  by 

[10] 


way  of  a  compromise.  It  was  loaded  with  dynamite.  If  touched 
off,  it  would  have  wrecked  everything.  There  were  those  who 
would  have  prohibited  it  in  the  whole  country.  There  were  those 
who  would  have  extended  it  everywhere  and  for  all  time.  It  was 
only  a  circumstance  of  luck  or  fortune,  or  something  that  pre¬ 
vented  drastic  action  one  way  or  the  other  in  the  convention.  Had 
slavery  been  prohibited  everywhere,  or  had  it  been  legalized  every¬ 
where,  in  either  case,  there  would  have  been  in  the  original  Consti¬ 
tution  something  to  which  the  Eighteenth  Amendment  could  be 
likened.  But  circumstance,  luck  or  fortune  postponed  it  till  it 
came  finally  in  the  form  of  an  addition  to  the  Constitution  in  1865. 

Once  more  it  is  contended  that  even  though  the  Thirteenth, 
Fourteenth  and  Fifteenth  Amendments  are  something  new  and 
different  and  unlike  anything  in  the  Constitution,  they  were  the 
natural  result  and  outcome  of  a  great  civil  war,  and,  therefore, 
were  necessary,  as  if  that  were  the  only  good  and  valid  excuse  for 
passing  amendments  But  is  it  not  infinitely  better  and  more  de¬ 
sirable  to  accomplish  the  same  results  or  like  results  by  peaceful 
methods  than  obtain  them  by  war  or  as  a  result  of  war?  Especi¬ 
ally  is  this  so  when  the  objectionable  thing  is  the  cause  of  the  war 
directly  or  indirectly.  We  believe  the  great  majority  of  the 
American  people  think  thus,  and  will  use  every  peaceful  means 
within  their  power  to  attain  these  desirable  results  rather  than  re¬ 
sort  to  war. 

The  Thirteenth,  Fourteenth  and  Fifteenth  Amendments  were 
secured  after  1,000,000  men  were  either  sent  to  their  premature 
graves  or  maimed  for  life,  $4,000,000,000  shot  away  in  smoke  and 
the  country  set  back  forty  years.  The  Eighteenth  Amendment 
was  secured  by  preaching,  lecturing,  praying  and  voting  through 
many  years— coming  gradually  and  with  little  noise.  We  have 
learned  how  to  do  things  since  ’61  to  ’65. 

It  is  sometimes  argued  that  even  though  the  first  ten  amend¬ 
ments  might  be  considered  as  additions,  they  may  also  be  consid¬ 
ered  as  practically  a  part  of  the  original  Constitution.  Dr.  Butler 
so  contends.  But  how  is  this?  There  were  224  amendments 
proposed  by  the  various  States  in  their  debates  on  ratification.  Out 
of  the  224,  only  seventeen  were  seriously  considered  by  Congress. 
Of  the  seventeen,  only  twelve  were  finally  adopted  and  sent  to  the 
States  for  ratification.  Of  the  twelve,  ten  were  ratified.  Just 

[11] 


which  of  the  224,  or  of  the  seventeen,  or  the  twelve,  can  be  said  to 
be  “practically”  a  part  of  the  original  Constitution?  Evidently, 
only  those  that  finally  happened  to  be  adopted  and  ratified,  some 
say.  But  this  conclusion  is  too  far  fetched. 

The  Eleventh  and  Twelfth  Amendments  can,  by  fair  argu¬ 
ment,  he  considered  as  properly  and  really  amendments  and  not 
additions.  They  actually  change  something  already  in  the  original. 
The  Thirteenth  is  something  added.  The  Fourteenth,  Fifteenth, 
Sixteenth,  Seventeenth  and  Nineteenth  change — amend  something 
already  in  the  Constitution. 

Sixth — It  was  secured  by  a  two-thirds  majority  of  a  quorum 
•of  the  Congress  and  a  majority  of  a  quorum  of  the  legislatures, 
instead  of  a  majority  of  all  the  members  elected. 

This  was  the  chief  contention  of  Mr.  Root  before  the  Su¬ 
preme  Court.  In  the  light  of  the  history,  custom,  rules  and  regu¬ 
lations  of  legislative  bodies  in  America,  it  is  difficult  to  understand 
how  Mr.  Root  could  in  good  faith  make  such  an  argument.  In 
doing  it  he  proves  too  much.  According  to  his  premise,  he  makes 
the  Constitution  itself  invalid  and  some  of  the  other  amendments 
null  and  void.  Those  things  which  he  values  so  highly  and  cher¬ 
ishes  as  a  precious  heritage  in  his  heart,  he  condemns  by  his  rea¬ 
soning. 

Let  us  look  at  this  matter  from  an  historical  standpoint  and 
■see  if  it  will  stand  the  light  of  day  from  Mr.  Root’s  viewpoint. 

When  the  Constitutional  Convention  adjourned  and  walked 
out  of  that  room  on  the  first  floor  of  the  building  on  Chestnut 
Street,  Philadelphia,  the  legislature  of  Pennsylvania  was  in  ses¬ 
sion  in  the  room  directly  overhead.  The  results  of  the  convention 
were  made  known  to  the  upstairs  body.  It  was  received  with 
ominous  silence.  Directly  two  parties  arose — those  for  and  those 
against  the  Constitution.  The  proponents  were  in  the  majority. 
The  minority  members  concluded  that  the  best  way  to  defeat  a 
ratification  was  to  absent  themselves  from  the  sessions  of  the  leg¬ 
islature  and  prevent  a  call  for  a  convention  of  the  people’s  dele¬ 
gates.  This  they  did,  but  the  majority,  with  the  assistance  of  a 
mob  of  Philadelphia  citizens,  broke  into  the  lodging  of  two  mem¬ 
bers  of  the  minority  party  and  kidnapped  them,  carried  them  to  the 
State  House,  thrust  them  through  the  door  of  the  assembly  room, 
locked  the  door,  and  the  Speaker  counted  an  exact  quorum.2  The 

[12] 


legislature  called  a  convention  by  the  vote  of  that  quorum — seven¬ 
teen  members  being  absent.  On  the  authority  of  that  call,  Penn¬ 
sylvania,  the  second  largest  State,  was  the  second  to  ratify  the 
Constitution.  In  the  light  of  subsequent  events,  the  reader  may 
well  ask  hiniself  the  question,  “after  all  have  not  the  people  of 
these  United  States  got  a  ‘kidnapped  Constitution’  ?” 

Pennsylvania,  geographically  situated  between  the  Northern 
and  Southern  States,  having  vital  interests  in  both  sections,  was 
easily  the  key  to  the  whole  problem  of  ratification. 

All  eyes  in  all  the  States  were  turned  toward  her.  If  the 
Constitution  failed  in  that  State  then  everybody  conceded  that  it 
was  doomed. 

But  Pennsylvania  “found  a  way”  to  do  it,  and  it  was  done. 
However,  the  call  being  made  by  violent,  criminal  and  illegal 
methods,  the  ratification  was  invalid  and  null  and  void. 

Who  will  have  the  hardihood  to  deny  that  the  second  most 
powerful  State  in  America  had  a  far  reaching  influence  on  the 
actions  of  other  States  yet  to  ratify? 

Mr.  James  M.  Beck,  ex-Solicitor  General  of  the  United 
States,  says  that  had  not  Pennsylvania  promptly  ratified  the  Con¬ 
stitution  and  set  the  example,  it  is  probable  that  Massachusetts,  the 
third  largest  State,  would  not  have  ratified,  and  if  neither  had 
ratified,  Virginia  and  New  York  would  not  have  done  so.3 

Mr.  Beck  is  only  voicing  the  belief  of  the  people  of  those 
States  at  the  time  and  most  Constitutional  writers  since. 

The  delegates  to  the  Massachusetts  Convention  were  in  a 
large  majority  opposed  to  ratification.  The  final  vote  was  187  to 
168.  A  change  of  ten  votes  would  have  been  fatal.  Those  ten 
votes  held  the  balance  of  power  and  were  originally  opposed  to  the 
Constitution.  What  influence  brought  them  over?  Many  an¬ 
swers  have  been  sponsored.  But  after  all  has  been  said,  it  is  a 
great  strain  on  one’s  credulity  not  to  believe  that  those  ten  men 
would  have  remained  steadfast  with  their  convictions  had  Penn¬ 
sylvania  rejected  the  Constitution.  Thus  Massachusetts,  the  third 
largest  State  in  the  Union,  ratified  through  an  unholy  influence 
exerted  upon  her,  and  that  influence  tainted  with  illegality. 

New  Hampshire  is  in  the  same  category  with  Massachusetts. 
Her  delegates  were  overwhelmingly  opposed  to  ratification  and 
with  definite  instructions  to  oppose  the  Constitution.  Its  conven- 

[13  1 


tion  was  adjourned  to  a  later  date  to  allow  delegates  to  confer 
with  their  constituents.  Finally,  the  majority  was  eleven  votes  in 
favor.  A  change  of  six  votes  would  have  defeated  ratification. 
Who  is  so  temerious  to  deny  that  the  action  of  Pennsylvania  and 
Massachusetts  converted  those  six  voters  and  brought  them  over  to 
the  Constitution.  Three  States  ratified  the  Constitution — the 
first,  invalid  and  void ;  the  second,  poisoned  by  the  first ;  and  the 
third,  contaminated  by  both. 

But  that  is  not  the  worst  of  the  story.  Let  us  go  to  Virginia. 
Here  was  a  long  bitter  struggle  with  giants  contending  for  and 
against.  A  large  majority  of  the  delegates  were  opposed  to  rati¬ 
fication.  Many  were  instructed  to  vote  against  the  Constitution. 
The  resolution  before  the  Convention  at  first  included  a  “condi¬ 
tion.”  By  a  close  vote,  the  condition  was  stricken  out,  but  un¬ 
fortunately  it  had  a  “sleeper”  in  it  in  the  form  of  a  reservation 
thus,  “the  powers  granted  under  the  Constitution  being  derived 
from  the  people  of  the  United  States  may  be  ‘resumed’  by  them 
whensoever  the  same  shall  be  perverted  to  their  injury  and  oppres¬ 
sion.”  The  vote  was  89  to  79  for  the  resolution  with  the  “sleeper” 
in  it.  Madison  said  the  reservation  was  not  a  “condition.”  Mason, 
Henry,  Monroe  and  others  said  it  was.  The  Virginia  Resolutions 
of  1798,  written  by  Madison,  advocating  nullification,  by  inference 
affirmed  the  “reservation  as  a  condition.”  The  ordinance  of  se¬ 
cession  of  Virginia,4  May  17,  1861,  reaffirmed  it  as  a  “condition,” 
and  through  all  the  intervening  years,  the  people  of  Virginia  so 
held. 

Ten  men  in  that  convention  had  positive  instructions  to  vote 
against  ratification.  Those  ten  voted  contrary  to  instructions. 
Ten  men  violated  a  sacred  trust.  The  ten  faith  breakers  and  trust 
violators  converted  a  defeat  into  a  victory  for  the  Constitution 
with  the  “sleeper”  tacked  on.  That  reservation  from  the  stand¬ 
point  of  law  was  a  condition.  A  conditional  ratification  is  no 
ratification,  and  the  Virginia  act  was  invalid  and  null  and  void. 

So  much  for  Virginia,  what  about  New  York?  The  resolu¬ 
tion  in  this  State  for  ratification  had  the  same  “sleeper”  in  it  as 
Virginia  with  this  difference.  The  word  “re-assumed”  was  used 
in  the  place  of  “resumed.”  “Condition”  was  also  in  it.  By  a 
large  majority,  “condition”  was  stricken  out.  Rhode  Island  used 
the  same  language  as  did  New  York. 

[14] 


Madison  wrote  a  letter  to  the  Poughkeepsie  Convention,  giv¬ 
ing  as  his  opinion  that  “reassumed”  was  not  a  condition,  and  the 
effect  was  “reassumed”5  stayed  in. 

But  a  stronger  case  of  invalidity  can  be  made  out  against  the 
New  York  ratification.  There  were  57  members  present  on  the 
day  of  the  vote.  Four  members  were  absent — total  61  elected. 
The  vote  stood  30  for  and  27  against.  Thirty-one  was  a  majority 
of  all  the  members.  Thirty  being  only  a  majority  of  a  quorum  the 
vote  was  illegal,  and  therefore,  the  act  of  ratification  was  invalid 
and  null  and  void. 

Rhode  Island  is  an  exact  parallel  to  New  York.  The  Consti¬ 
tution  there  was  finally  ratified  by  a  majority  of  two  votes,  two 
members  being  absent.  The  vote  in  favor  was  only  one-half  of 
all  the  members  elected  and  not  a  majority,  therefore,  the  act  of 
Rhode  Island  was  invalid  and  void.6 

Pennsylvania,  call  for  convention  invalid — majority  of  a 
quorum  and  that  quorum  kidnapped ;  Virginia,  ratification  invalid 
— bad  faith  and  conditional;  New  York,  ratification  invalid — ma¬ 
jority  of  a  quorum,  besides  conditional;  Rhode  Island,  ratification 
invalid — -majority  of  a  quorum! 

Thus  to  this  unhappy  and  dreary  revelation  Mr.  Root’s  rea¬ 
soning  leads  us,  sanctioned  by  Dr.  Nicholas  Murray  Butler,  of 
Columbia  University. 

Yet  it  may  be  argued,  leaving  out  all  these  invalid  ratifica¬ 
tions,  we  still  have  nine  valid  ratifications,  enough  to  make  the 
Constitution  legal,  valid  and  effective.  The  bad  acts  of  the  four 
States  would  not  have  changed  the  result.  That  will  depend  upon 
the  question  whether  or  not  the  four  illegal  and  invalid  acts  poison 
the  whole  proceeding. 

For  argument’s  sake,  the  point  will  be  conceded  that  the  final 
result  would  not  have  been  changed  by  the  four  illegal  State  acts. 
But  we  have  proved  the  contention  that  the  history  of  legislative 
bodies  in  the  United  States,  customs,  precedent,  rules  and  regula¬ 
tions  of  procedure  sanction  the  effectiveness  of  votes  of  majorities, 
of  quorums  and  this  is  the  object  of  this  discussion. 

But  this  argument  is  not  ended  yet.  We  have  somewhat 
more  to  do  with  that  Thirteenth  Amendment.  If  Mr.  Root’s 
reasoning  had  prevailed,  which,  thanks  to  a  unanimous  decision  of 
the  nine  judges  of  our  Supreme  Court,  it  did  not,  and  the  same 

[15] 


reasoning  had  been  directed  or  still  might  be  directed  against  the 
Thirteenth  Amendment,  there  might  have  been,  and  still  might  be, 
consequences  so  astounding  as  to  stagger  all  human  imagination. 
We  shudder  at  the  thoughts  of  it. 

On  Sept.  22,  1862,  President  Lincoln  issued  his  Emancipation 
Proclamation.  On  Jan.  1st,  1863,  it  went  into  effect  freeing 
4,000,000  human  beings.  Mr.  Lincoln  always  had  his  doubts 
whether  that  proclamation  or  the  results  of  it,  would  be  permanent 
after  the  necessity  was  removed.  To  allay  all  doubt,  he  studiously 
set  himself  to  the  task  of  influencing  Congress  to  propose  an 
amendment  to  the  Constitution,  thus  placing  the  seal  on  what  he 
had  done  as  a  military  necessity.  In  Dec.,  1863,  a  resolution  was 
introduced  in  the  House  to  that  effect.  In  Jan.,  1864,  a  like  reso¬ 
lution  was  introduced  in  the  Senate.  On  April  8th,  following,  the 
Senate  voted.  The  vote  was  favorable  to  the  resolution  38  to  6, 
more  than  a  two-thirds  majority  by  far.  But  in  the  House  there 
was  no  such  good  fortune.  It  failed  by  93  to  65.  Mr.  Ashley,  of 
Ohio,  changed  his  vote  from  yes  to  no,  and  moved  a  reconsidera¬ 
tion.  On  Jan.  28th,  1865,  on  reconsideration  the  House  voted 
again,  this  time  1 19  to  56,  and  the  resolution  was  declared  passed 
amid  a  great  demonstration  of  members  and  spectators.  There 
were  183  members  of  the  House;  175  were  present.  Eight  Demo¬ 
crats  were  absent  purposely  to  let  it  carry.  They  were  unwilling  to 
vote  for,  but  would  not  vote  against  it.  There  were  just  3  votes 
short  of  the  two-thirds  majority  of  all  the  members  of  the  House.7 
Thus,  by  Mr.  Root’s  reasoning,  the  Thirteenth  Amendment,  being 
passed  by  two-thirds  of  a  quorum  and  not  two-thirds  of  all  the 
members  of  the  House,  is  invalid  and  null  and  void ;  the  liberty  of 
multiplied  millions  of  human  beings  in  America,  in  this  Spring¬ 
time  of  the  Twentieth  Century,  is  shrouded  in  doubt  and  gloom 
and  in  imminent  jeopardy. 

What  about  the  Fourteenth  Amendment?  Does  this  one 
stand  on  any  better  footing  than  the  Thirteenth?  This  amend¬ 
ment  affects  not  only  the  liberty,  btu  the  lives  and  property  of  all 
the  citizens  of  the  United  States,  black  or  white.  When  this 
amendment  was  proposed  in  the  Senate,  discussed,  and  voted  on, 
the  result  was  33  ayes  and  11  noes.  The  Senate  consisted  of  50 
members.  Forty-four  voted.  Six  were  absent  or  not  voting.  Of 
those  voting,  it  carried  by  a  three-fourths  majority.  It  failed  to 

[16] 


carry  a  two-thirds  majority  of  all  the  members  elected  by  one-third 
of  one  vote,  and  therefore,  was  invalid  and  null  and  void.8 

But,  someone  says,  you  are  quibbling,  you  can’t  split  a  vote 
and  the  fraction  is  unimportant  and  trivial.  The  point  will  be 
yielded  for  it  is  not  needed,  for  a  very  good  reason,  and  here  it  is. 

On  June  13,  1866,  the  House  took  up  the  resolution  as  it 
came  from  the  Senate  in  the  above  condition.  After  a  brief  dis¬ 
cussion,  the  vote  was  taken,  resulting  in  ayes  120,  noes  32,  far 
more  than  the  necessary  two-thirds  majority  of  those  voting.  One 
hundred  and  fifty-two  votes  were  cast.  Yet  there  were  193  mem¬ 
bers  of  the  House  elected.  Forty-one  members  were  absent  or 
not  voting.  Thus,  while  the  resolution  carried  by  a  large  majority 
of  a  quorum,  still  it  lacked  eight  and  two-thirds  votes  of  being  a 
two-thirds  majority  of  the  whole  House,  therefore,  it  was  invalid 
and  null  and  void. 

Is  there  any  one  in  these  United  States  who  can  believe  that 
the  “tall,  slim,  acknowledged  leader  of  the  American  bar,”  the  hero 
of  Dr.  Nichloas  Murray  Butler,  or  the  doctor  himself,  were  either 
of  them,  ignorant  of  these  facts  of  history  or  Constitutional  legis¬ 
lation?  Both  of  them  are  to  be  presumed  to  be  great  students, 
profound  students  of  American  history.  Mr.  Root  is  a  corpora¬ 
tion  lawyer  as  well  as  a  constitutional  lawyer,  and  many  times  has 
stood  before  that  same  Supreme  Court,  and  advocated  the  causes 
of  rich  clients  for  the  rights  accruing  under  the  Fourteenth 
Amendment;  contending  against  the  encroachments  of  the  “equal 
protection  of  the  laws,”  the  “due  process  of  law”  clause,  the 
“privileges  and  immunities”  clause,  and  rightly  so.  But  how 
could  he  do  it,  though,  knowing  it  was  secured  in  a  manner  not 
legal,  and  one  which  he  subsequently  condemned  when  arguing 
against  the  Eighteenth  Amendment. 

If  he  was  right  when  arguing  for  the  Fourteenth  Amend¬ 
ment,  he  was  wrong  when  arguing  against  the  Eighteenth.  He 
can  not  blow  hot  and  cold  at  the  same  time.  From  his  own  mouth, 
he  condemns  himself. 

How  about  the  Fifteenth  Amendment !  Does  this  one  stand 
on  any  better  footing  than  the  last  two?  In  Feb.,  1868,  after  all 
the  late  seceeding  States,  except  Georgia,  Mississippi  and  Texas, 
had  been  restored  to  representation  in  Congress,  and  the  members 
had  taken  their  seats,  the  resolution  proposing  the  Fifteenth 


Amendment  was  taken  up.  In  the  Senate,  the  vote  stood  39  for, 
and  13  against.  There  were  66  members  elected.  Only  52  voted 
with  the  above  result,  making  a  three-quarter  majority  of  the  votes 
cast.  It  required  44  votes  to  make  a 'two-third  majority  of  all  the 
members.  Thus,  the  vote  cast  was  5  short  of  the  two-third  ma¬ 
jority  contended  for.  The  House  vote  was  145  ayes  and  44  noes, 
total  189,  making  19  more  than  a  two-third  majority  of  those 
voting.  But  there  were  230  of  the  House  elected.  Forty-one 
were  absent  or  not  voting.  Two-thirds  of  230  makes  153  1-3. 
So  the  vote  cast  was  actually  8  1-3  votes  short  of  the  two-third 
majority  of  the  whole  House;  3  1-3  votes  more  than  the  Senate 
cast.  Both  House  and  Senate  lacking  the  necessary  two-thircl 
majority  of  all  the  members  of  each  branch  respectively,  as  con¬ 
tended  for,  the  Fifteenth  Amendment  as  adopted  is  invalid,  and 
therefore,  null  and  void.9 

Had  Mr.  Root,  in  concluding  his  argument,  said,  “Your 
Honors,  I  have  but  two  or  three  minutes  remaining,  and  in  all 
fairness  before  closing,  I  am  bound  to  say  to  you  that  this  Eight¬ 
eenth  Amendment  is  invalid  and  cannot  stand.  The  Civil  War 
amendments  are  void  for  the  same  reason.  In  fact,  your  Honors, 
the  whole  Constitution  itself  and  all  the  amendments  under  it  are 
without  law.  They  are  without  authority.  Those  fifty-five 
drafters  of  this  document  did  not  do  that  which  they  were  author¬ 
ized  to  do,  they  broke  faith  with  the  people  and  set  up  another 
government  which  the  people  had  not  known.  They  were  faith 
breakers  and  trust  violators.  And  even  though  the  people  might 
have  ratified  that  which  they  did,  they  did  not  do  it  in  a  valid  and 
legal  manner. 

The  first  bad  and  illegal  step,  such  as  was  taken  by  the  legis¬ 
lature  of  Pennsylvania,  in  using  violent,  criminal  and  unlawful 
methods,  corrupted  the  whole  proceeding  of  ratification,  and  you 
must  hold  that  this  so-called  government  is  no  government;  the 
President  is  an  usurper ;  the  Congress  are  usurpers,  they  must 
abdicate ;  and  you,  your  Honors,  must  vacate  this  bench  and  go 
home,  and  we  will  go  back  to  the  only  honest-to-goodness  govern¬ 
ment  there  is,  and  that  is  under  the  old  Articles  of  Confederation.’’ 

Had  he  made  this  speech,  he  would  have  gotten  just  as  far 
and  won  over  just  as  many  of  the  Court  as  with  the  one  he  did 
make — and  that  was  NONE. 

[  18] 


Public  Opinion : — 

How  does  the  public  sentiment,  in  regard  to  the  adoption  and 
ratification  of  the  Eighteenth  Amendment,  compare  with  the  same 
as  to  the  other  amendments  and  the  Constitution  itself  ?  This  can 
be  answered  only  by  studying  the  statistics  as  shown  in  the  records, 
all  amendments  having  been  secured  by  the  same  procedure. 

The  Constitution  itself  became  effective,  and  the  Government 
under  it  was  functioning  many  months  before  North  Carolina  and 
Rhode  Island  ratified.  In  fact,  these  States  at  first  defeated  rati¬ 
fication,  and  finally  came  in  under  necessity — they  were  only  mak¬ 
ing  the  best  of  a  bad  situation.  Hence,  the  Constitution  received 
the  support  of  only  84.59%  of  all  the  States — 15.41%  denied  it 
support.  The  first  ten  amendments  lacked  the  support  of  three 
States  out  of  14;  Connecticut,  Massachusetts  and  Georgia  regard¬ 
ing  them  so  lightly  as  to  ignore  them  altogether,  at  least  there  is 
no  record  of  any  action — only  78.58%  ratified,  21.42%  refused.10 

The  Eleventh  Amendment  was  ratified  by  11  out  of  15  States, 
or  73.26%  for,  and  26.74%  refusing.  The  Twelfth  was  acted 
upon  favorably  by  13  out  of  17  States,  or  76.48%  for,  and  23.52% 
against.11  Nine  States  failed  to  support  the  Thirteenth  and  27 
ratified,  making  75.07%  for,  and  24.93%  against.12  Six  ratified 
subsequently,  after  it  went  into  effect.  Six  States  failed  to  ratify 
the  Fourteenth.  Thirty  supported,  making  83.38%  for.  and 
16.62%  against.13 

Out  of  37  States,  eight  failed  to  ratify  the  Fifteenth  Amend¬ 
ment,  or  78.16%  for,  and  21.84%  against.14  Ten  States  out  of  48 
refused  to  ratify  the  Sixteenth,  or  80%  for,  and  20%  against. 
Twelve  out  of  48  States  opposed  the  Seventeenth,  or  75%  for, 
and  25%  against.15  Eleven  States  thus  far  have  refused  the  Nine¬ 
teenth,  or  77.91%  for,  and  22.09%  against.16  Of  the  48  States, 
all  but  two  have  ratified  the  Eighteenth  Amendment,  or  95.98% 
for,  and  only  4.02%  against. 

In  view  of  these  statistics,  this  last  amendment  was  more  in 
accord  with  public  sentiment  than  the  Constitution  itself  by 
11.39%:  more  than  the  Bill  of  Rights  (first  10  amendments)  by 
17.4%;  more  than  the  Eleventh  Amendment  by  22.72%;  more 
than  the  Twelfth  by  19.5%;  it  outdid  the  Thirteenth  by  20.91%; 
the  Fourteenth  was  distanced  by  tbe  Eighteenth  by  12.6%;  the 

[19] 


Fifteenth  by  17.82%;  the  Sixteenth  by  15.98%;  the  Seventeenth 
by  20.98%  ;  and  the  Nineteenth  by  18.07%. 

Before  National  Prohibition  came,  33  States  had  laws  of 
their  own,  and  either  by  State  wide  action  or  local  option  voted 
2,235  counties  of  the  whole  country  dry,  leaving  only  305  where 
liquor  was  legal.  As  to  Congressional  and  legislative  action  on 
the  Eighteenth  Amendment,  the  vote  in  both  branches  of  Congress 
stood  347  for,  and  148  against.  In  the  48  State  legislatures,  5,079 
voted  to  ratify  and  1,265  voted  against.  Thus,  we  find,  when 
compared  with  the  ratifications  of  the  Constitution,  and  all  the 
other  amendments,  or  when  compared  with  the  adverse  vote  in 
Congress  and  the  legislatures  in  the  aggregate,  the  Eighteenth 
Amendment  makes  a  far  better  showing  with  the  public  than  any 
other  like  action  in  the  history  of  our  country.  Its  validity,  in  the 
light  of  history,  customs,  precedent,  rules  and  regulations  of  our 
deliberative  bodies,  stands  unimpeached  and  impregnable  before 
the  whole  world.  And  from  the  beginning  of  its  journey  to  the 
end,  having  to  run  the  gauntlet  of  a  two-third  majority  of  two 
Houses  of  Congress,  and  majorities  of  96  branches  of  State  legis¬ 
latures,  and  having  successfully  run  both  of  the  former  over¬ 
whelmingly,  and  having  run  93  of  the  latter,  and  failed  in  only 
three,  for  one  branch  of  the  47th  State  ratified ;  the  Eighteenth 
Amendment  may  rightfully  be  said  to  have  been  sanctioned  by  the 
sound  of  Public  Opinion  of  America. 


NOTES 

1.  Debate  with  Senator  Borah. 

2.  Beck — The  Constitution  of  the  United  States,  p.  182. 

3.  Ibid — The  Constitution  of  the  United  States,  p.  191. 

4.  A.  H.  Stephens — “War  Between  the  States,  p.  376. 

5.  Documentary  History  of  the  United  States,  p.  190. 

6.  Documentary  History  of  the  United  States,  p.  311. 

7.  Blaine,  Twenty  Years  in  Congress. 

8.  Blaine,  Twenty  Years  in  Congress,  p.  212. 

9.  Blaine,  on  page  304,  Twenty  Years  in  Congress,  Mr. 
Blaine  gives  the  vote  on  this  amendment.  On  page  417,  he  gives 
the  names  of  all  the  Senators  and  all  the  members  of  the  House. 
He  gives  the  date  when  they  were  admitted  (seceding  members) 
to  their  seats.  Their  being  seated  antedates  the  vote  on  the 
amendment  by  many  months.  1  counted  the  members  and  the 
numbers  are  as  given.  If  they  are  wrong,  Mr.  Blaine  is  at  fault. 
Editor. 

10.  Carnegie  Endowment  for  International  Peace,  p.  43. 

11.  Constitution  Society — Constitution  of  U.  S.,  p.  27. 

12.  Carnegie  Endowment  for  International  Peace,  p.  47. 

13.  Ibid,  page  47. 

14.  Ibid,  page  49. 

15.  Ibid,  page  49. 

16.  Ibid,  page  50. 


[21] 


. 


4  *  &  7 


-v-iT-t .  7o 


